Bonus 167: The Case for Not Writing

With the justices handing down so many significant grants of emergency relief without rationales, it's worth identifying the arguments in support of unexplained rulings—and why they fail to persuade.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter (and unscheduled issues) will remain free for as long as I’m able to do this, I put much of the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit.

Monday’s unexplained ruling in the Department of Education downsizing case, about which I wrote Monday afternoon, has helped to provoke long-overdue attention to the justices’ unwillingness to explain many (if not most) of their grants of emergency relief. I wrote a few weeks back, in the context of the third-country removals case, about why it was so important for the Court to be explaining its rulings—both in the abstract and in the specific context of its repeated interventions in favor of the Trump administration.

But I thought I’d use today’s bonus issue for a related, but distinct, purpose: As ever, the Court has its defenders—even for actions that, to many, may seem indefensible. And that has extended to arguments for why the Court doesn’t need to explain itself. Below the fold, I take a stab at identifying all of the reasons I’ve heard or seen in support of the Court not writing—and why, although some of those arguments might make sense in some other cases, they rather fail to persuade when it comes to the (as of Monday, seven) entirely unexplained grants of emergency relief to President Trump.

For those who aren’t paid subscribers, we’ll be back (no later than) Monday with our regular coverage of the Court. For those who are, please read on.